dissenting. The plaintiff shipped live stock from Tennessee to New Bern, N. C., over several railroad lines, including the defendant’s line. One mule was found dead in the car. The plaintiff sues for its value and alleges negligence as the cause of loss of the mule.
The plaintiff had a right to ship his stock over the railroads, as common carriers, by paying the usual charge for transportation or to ship by special contract, and he elected to take the latter course. He, by special contract, for a consideration in reduced rates for transportation, agreed to relieve the carrriers from their liability of common carriers in the transportation, and agreed that their liability should be only that of a private carrier for hire, and he assumed all risk of injury by the animals to each other; or of heat or suffocation or other ill effects of being crowded in the cars, etc. We then have the case of a carrier liable-for want of ordinary carej in other words, for negligence.
The liability of common carriers is harsh, but upon the ground of public policy it is not unjust. After the parties closed the examination, his Honor explained the rights and *251liabilities of carriers and instructed tbe jury that there was no evidence in this case that the defendant was negligent in transporting the stock, to which the plaintiff excepted.
I have carefully read the evidence, and I see no error in the charge of the Court. The mule seems to have died of colic or from some natural cause, which may have been induced and accelerated by the crowded condition of the car. I think the burden of showing negligence on the part of the defendant rested on the plaintiff, and that the special agreement was a valid contract. Smith & Melton v. R. Co., 64 N. C., 235; Selby v. Railroad, 113 N. C., 588.
New trial.